The Marrakesh Treaty is designed to address the “book famine” problem in which it has been estimated that only between 1 and 7% of all published works are ever created in an accessible format for those that are blind, visually impaired or otherwise print disabled. The Marrakesh Treaty sets forth minimum standards for limitations and exceptions to facilitate access to accessible format works. It also permit cross-border sharing of these accessible formats, allowing countries to avoid unnecessary duplication of efforts and resources in the creation of these accessible works. The cross-border provision also facilitates importation of works created in other languages.

As an organization dedicated to achieving enduring and barrier-free access to information, ARL celebrates this milestone in the United States. Libraries, as authorized entities, play a critical role not only in serving their own patrons, but also in facilitating cross-border exchange of accessible format works. The United States is one of 55 contracting parties and countries from every region of the world are members of the Marrakesh Treaty. Canada previously joined the Marrakesh Treaty in 2016 and, significantly, was the 20th ratifying or acceding country which triggered the entry into force of the Treaty itself. A number of other ratifications are also currently underway.

Today, the U.S. House of Representatives will vote on the Save the Internet Act, a bill designed to restore the net neutrality protections put into place in 2015 by the Federal Communications Commission. The FCC’s 2015 Open Internet Order reclassified broadband Internet under Title II and put in place strong rules prohibiting blocking, throttling and paid prioritization, while also including a “General Conduct Rule.” This Order was upheld by the Court of Appeals for the DC Circuit, but after a change of FCC leadership resulting from President Trump’s election, the FCC reversed course and eliminated these protections. The Save the Internet Act would largely codify the 2015 Open Internet Order and passed the House Energy and Commerce Committee by a 30-22 last week.

ARL has long supported net neutrality, taking part in several rulemaking processes and filing comments, submitting amicus briefs, and meeting with key policymakers, because access to an open Internet is critical to the cutting edge research and creation of information platforms facilitated and supported by libraries. As noted in ARL’s 2017 FCC Reply Comments,

Research libraries depend upon an open Internet to fulfill their missions and serve their communities. Research libraries retrieve and contribute content on the World Wide Web and the other databases that are exposed to consumers on the Internet. ARL suggests that the public interest missions of libraries are inextricably intertwined with the openness upon which the Internet is based. The democratic nature of the Internet as a neutral platform for carrying information to students, researchers and the general public is strongly aligned with the public interest missions of libraries.

The comments point to several different projects at ARL libraries that depend on an open Internet, including ones that provide access to vast datasets, create interactive connected classrooms, preserve and share cultural heritage, facilitate discovery through linked open data, and provision of Internet access itself. The comments also cite to this collection of additional examples highlighting the importance of an open Internet to ARL member libraries.

Access to information in the digital age depends on strong protections to preserve the open character of the Internet and ensure that non-profit, educational voices are not disadvantaged. Without rules protecting against blocking, throttling or paid prioritization, broadband providers have already demonstrated the ability and willingness to charge platforms and services more to deliver content, potentially creating fast lanes and slow lanes for information.

Today, the House has the opportunity to take another step forward in protecting an open Internet. Battle for the Net has live coverage and advocacy tools to encourage this next step in the fight for net neutrality.

Today, US Senators Durbin (D-IL), King (I-ME), Smith (D-MN) and Sinema (D-AZ) and US Representative Neguse (D-CO) re-introduced the Affordable College Textbook Act. The bill would create a grant program to support projects on open textbooks. The current bill is largely similar to the version introduced in the last Congress with a few key changes including new language to improve accessibility of materials created under the bill for students with disabilities and amending the Higher Education Act to require publishers to disclose whether material is an open educational resource (OER).

ARL, along with ACRL, SPARC, Creative Commons, US PIRG and ten other organizations currently support this bill. ARL urges Congress to pass this bill to help address the high cost of college textbooks, which can be a barrier to education.

The first quarter of 2019 is replete with open access significance—from the public comment filings on Plan S, to the news last week that the University of California canceled its system-wide subscription to Elsevier journals over the company’s unwillingness to meet a set of faculty-endorsed principles of scholarly communication. The full set of principles is a magnificent document, made all the more powerful as an expression of faculty and senior university administration will. But one aspect in particular marks a noteworthy shift within the research community—a recognition that fully funding research ought to include the open dissemination of that research. Plan S was conceived by a group of national research councils. The UC proposed agreement included an explicit commitment on the part of the university to fund open dissemination of research (through publishing fees) when external funding isn’t present.

The National Science Foundation (NSF) just published its annual “Higher Education R&D Spending” report. In 2016, “academic institutions spent $72 billion on R&D.” While the largest source of funds comes from the federal government, at slightly more than half which are essential to the advancement of science and research, “higher education institutions [themselves] funded 25% of total academic R&D in 2016.” Universities, along with the federal government, state and local governments, and business, are significant research funders. “Universities not only fund research through grants and other forms of direct financial support, they also pay the salaries/benefits of faculty members and other employees who conduct research, as well as providing labs, equipment, technology, etc. that make research possible,” said Shan Sutton, Dean of Libraries at the University of Arizona. “This positions universities as essential funders of research that could implement requirements and infrastructure for the open dissemination of the resulting research outputs.”

What if universities collectively agreed to the same principles as the Plan S coalition and the UC—that fully funding research also means funding open, immediate dissemination? When we talk about academy-owned, or scholar-led publishing—inclusive of text, data, materials, software, etc.—we would do well to remember that nearly one quarter of R&D is funded by universities. And that’s just STEM.[1] Universities fund a much higher percentage of research in the humanities and social sciences, where open access increases reach, readership, and impact in critical arenas such as policy and civic society.

In partnership with the Association of American Universities (AAU) and the Association of University Presses (AUPresses), ARL is leading a five-year pilot project to flip the financing of humanities and social science (HSS) monographs. Under the TOME initiative, participating universities are providing $15,000 grants to their HSS faculty to publish their monographs openly through participating university presses. Having supported their faculty up to the point of publication, in other words, participating TOME institutions are also funding the open publication of the research, and supporting academy-owned presses in the process.

Changing the premise of scholarly publishing from paying to read, to paying to publish, is a subject of complex debate at the level of implementation (who pays, by what mechanism, how much, and how to ensure global equity of access to publishing). And there are different models on the table. But at the level of principle, we can take a moment to celebrate what the UC system achieved—faculty, student, library, and university-administrator support for the open dissemination of research as part of the cost of doing research.

This week is Fair Use/Fair Dealing Week, an annual celebration of the important doctrines of fair use and fair dealing. It is designed to highlight and promote the opportunities presented by fair use and fair dealing, celebrate successful stories, and explain these doctrines.

Check out all the great posts from Day 2 of Fair Use/Fair Dealing Week 2019! Don’t see yours? Contact us to get yours added! You can view previous roundups here. Stay tuned for a post collecting all the highlights from the week.

This week is Fair Use/Fair Dealing Week, an annual celebration of the important doctrines of fair use and fair dealing. It is designed to highlight and promote the opportunities presented by fair use and fair dealing, celebrate successful stories, and explain these doctrines.

Check out all the great posts from Day 4 of Fair Use/Fair Dealing Week 2019! Don’t see yours? Contact us to get yours added! You can view previous roundups here.

This week is Fair Use/Fair Dealing Week, an annual celebration of the important doctrines of fair use and fair dealing. It is designed to highlight and promote the opportunities presented by fair use and fair dealing, celebrate successful stories, and explain these doctrines.

Check out all the great posts from Day 3 of Fair Use/Fair Dealing Week 2019! Don’t see yours? Contact us to get yours added! You can view previous roundups here.

This week is Fair Use/Fair Dealing Week, an annual celebration of the important doctrines of fair use and fair dealing. It is designed to highlight and promote the opportunities presented by fair use and fair dealing, celebrate successful stories, and explain these doctrines.

This year, Fair Use/Fair Dealing Week immediately follows the Oscars and I definitely have movies on my mind. The Green Book (which I haven’t seen yet) was one of the nominees—and ultimately winner—of the coveted Best Picture Award, but was not without its share of critics. Like other movies dealing with race, critics said that it minimized the true extent of racism and fell into the “White Savior” trope. Just before the Academy Awards, comedian Seth Meyers released a video highlighting these criticisms parodying popular films, including Hidden Figures, The Blind Side, and The Help. Meyer’s White Savior: The Movie Trailer is a fantastic example of parody which, of course, is protected by fair use. Since Kenny Crews covered parody so well in his Day 1 post, I’ll turn to a different aspect of fair use and movies.

Although films obviously create their own creative content, protectable by copyright, often these works incorporate existing content. Depending on the particular use, a filmmaker or production studio may choose to license a particular copyrighted work, but in other instances the film creator has relied on fair use. Here are some examples where fair use and films have gone hand-in-hand—both in the documentary film context as well as feature films and shows.

Documentary filmmakers have relied heavily on the doctrine of fair use, which makes a lot of sense. If documentary filmmakers constantly had to rely on permission and licenses—which would also mean that a rightholder could refuse to grant permission—the result could be that these documentaries lacked proper historical references and context. In a 1996 case, the Southern District of New York refused to grant Turner Broadcasting’s motion for injunctive relief, finding that the clips of a boxing match film involving Muhammad Ali and George Foreman in a documentary about Muhammad Ali was likely a fair use. In Monster Communications, Inc. v. Turner Broadcasting Systems, the court noted that only a small portion of the total film—just 41 seconds—was taken and that the documentary used it for informational purposes.

In another instance of documentary filmmaking, artist Bouchat sued over the use of the Baltimore Ravens’ logo in several videos. While a prior case held that the Baltimore Ravens had infringed the logo design by Bouchat for several years, the use in the films (and historical exhibits) was considered fair. The Fourth Circuit held in Bouchat v. Baltimore Ravens that the videos at issue used the copyrighted material in a transformative way, telling the history of the Baltimore Ravens and the logos were “fleeting” in nature.

And in yet another litigated case over a documentary film, National Center for Jewish Film v. Riverside Films, a district court noted that the use of film clips in Sholem Aleichem: Laughing in Darkness (about the life of a 19th century Yiddish author) was transformative because it incorporated various clips with scholarly commentary (NB: whether the films had entered the public domain was also questioned, a factor that the court weighed in favor of fair use). Again, because these clips were used in a transformative way that did not supplant the market for the original film, the court held the use to be fair.

Not every fair use ends up being litigated, though. Indeed, most documentary movies probably don’t involve rightsholders claiming copyright infringement in part, thanks to the Documentary Filmmakers’ Statement of Best Practices in Fair Use. That Code of Best Practices, like other Codes (see: Code of Best Practices in Fair Use for Academic and Research Libraries or the Code of Best Practices in Fair Use for Software Preservation—two best practice statements released by ARL), relies on the consensus view of fair use best practices in the community for which it was written. The 2005 Code for Documentary Filmmakers has had a tremendous impact on the community, making it easier for filmmakers to get insurance, avoiding unnecessary licensing costs and leading to the release of films that may never have been finished otherwise. One of the successes is This Film Is Not Yet Rated about the MPAA’s rating system. While the director had initially planned to license the clips used, those licenses would have prevented him from using the material in a way that criticized the entertainment industry.

While the documentary filmmaker community relies heavily on fair use there are a number of examples where fair use was invoked in feature films, as well. For example, the Oscar-winning movie Midnight in Paris, about a screenwriter, played by Owen Wilson, who travels back in time to the 1920s and hangs out with luminaries like Scott Fitzgerald, Ernest Hemingway, Gertrude Stein, Cole Porter, Salvador Dali and others was the subject of a lawsuit. In one scene, the main character paraphrases a line from novelist William Faulkner’s novel, Requiem for a Nun (the line in question is, “The past is never dead. It’s not even past”) and provided attribution back to Faulkner. Nonetheless, the Faulkner estate sued, claiming that the use of the line infringed copyright. The Northern District Court of Mississippi referencedde minimis usage (discussed a bit more below), but also conducted a full fair use analysis finding that the quote was of “miniscule” importance to Faulkner’s novel as a whole and the use in Midnight in Paris, which amounted to a mere 8 seconds of the feature-film, did not harm Faulkner’s market for his novel. To the contrary, the court questioned: “How Hollywood’s flattering and artful use of literary allusion is a point of litigation, not celebration, is beyond this court’s comprehension. The court, in its appreciation for both William Faulkner as well as the homage paid him in Woody Allen’s film, is more likely to suppose that the film indeed helped the plaintiff and the market value of Requiem if it had any effect at all.”

Similarly, in the 2013 film Lovelace, based on the biography of Linda Lovelace, an actress who starred in a famous pornographic film but later became a spokesperson against pornography, the producers re-created three scenes from Deep Throat. The Southern District of New York in Arrow Productions v. The Weinstein Company ruled the use transformative because it provided “new, critical perspective” on Lovelace and would not supplant the market for the pornographic film.

Courts have considered and upheld fair uses in the film context, but some have found in favor of the defendant without even needing to go through the four fair use factors. Instead, for various uses of copyrighted works in TV shows and feature films, some courts have found in favor of the use on the basis of fair use’s cousin, de minimis use. In these de minimis use cases, courts have determined that the amount used was so small and trivial, the court need not engage in a full fair use analysis. These cases have included, for example, the 2000 rom-com What Women Want, featuring Mel Gibson (involving the depiction of a pinball machine in the background); the 1995 crime thriller SE7EN, featuring Brad Pitt and Morgan Freeman (use of copyrighted photos appeared fleetingly and out of focus); and HBO’s TV series Vinyl which was created by Mick Jagger and Martin Scorsese about a record executive in the 1970s (fleeting use of a dumpster tagged with graffiti in the background of a single scene).

This week is Fair Use/Fair Dealing Week, an annual celebration of the important doctrines of fair use and fair dealing. It is designed to highlight and promote the opportunities presented by fair use and fair dealing, celebrate successful stories, and explain these doctrines.

Fair Use Week properly celebrates a critical limitation on copyright protection that enables free expression and creativity. And at the beginning of this year, we celebrated works entering into the public domain because their copyright term (finally!) expired. The recent death of Betty Ballantine, one of the founders of Bantam Books and Ballantine Books, reminds us of another limitation that stimulated the growth of the U.S. publishing industry: the manufacturing clause. Until the United States joined the Universal Copyright Convention in 1954, the Copyright Act’s manufacturing clause protected English-language literary works only if they were printed in the United States with the copyright owners’ authorization. This allowed U.S. publishers to reprint British works that weren’t printed in the United States without paying royalties to the British authors.

The importance of the manufacturing clause was underscored in the Washington Post’s obituary about Betty Ballantine, who passed away on February 12, 2019. The obituary explained how Betty Ballantine and her husband, Ian Ballantine, helped develop the market for paperback books in the United States. Prior to World War II, paperback books were primarily poorly made pulp novels. After the War, “the Ballantines took advantage of new technology in production and distribution and of a clause in copyright law discovered by Ian that waived fees on books from Britain, where high quality paperbacks were easier to find.” The clause that Ian “discovered” was the manufacturing clause, which actually was well known at the time. They founded Bantam Books, which, among other titles, published British bestsellers that had not yet been printed in the United States. In 1952, they established Ballantine Books based on the same business model. Both Bantam Books and Ballantine Books eventually became part of Penguin Random House.

In other words, large divisions of a major publishing house have their roots in a limitation on copyright protection. Moreover, this limitation encouraged the growth of an important market segment: paperback books. In this instance, the manufacturing clause worked exactly as intended; it promoted the development of U.S. printers and publishers at the expense of foreign rights holders. The manufacturing clause, when adopted in 1891, actually expanded the rights of foreign authors. Prior to the clause’s adoption, foreign authors received no copyright protection in the United States. Under the manufacturing clause, foreign works received copyright protection if they were printed in the United States. This approach provided increased protection for foreign authors without harming the developing U.S. printing industry because the foreign works received protection only if they were printed on U.S. presses. Nonetheless, the manufacturing clause departed from the national treatment approach of the Berne Convention, adopted five years earlier in 1886.

Although the manufacturing clause was an improvement over the previous situation of receiving no protection, foreign authors still objected to it because U.S. publishers often printed their books in the United States before they had the opportunity to authorize U.S. publication. In 1909, Congress exempted foreign language works from the manufacturing clause, but it still applied to books published in English. In 1954, in the context of joining the Universal Copyright Convention (“UCC”), Congress excluded all foreign works—even those in English–from the scope of the manufacturing clause. By then, the United States had become a major exporter of copyrighted works, and U.S. publishers would benefit from receiving protection of their works overseas under the UCC. The printing trade unions opposed the United States joining the UCC and the narrowing of the manufacturing clause. Nonetheless, until 1986, the manufacturing clause still applied to U.S. authors, meaning that U.S. authors received copyright protection only if their books were printed in the United States.

The exemption of English language books from the scope of the manufacturing clause in 1954 disrupted the Ballantines’ business model. But by then, their publishing houses were well established, and they went on to publish many popular books with the authors’ permission. Balzac said that “behind every great fortune there lies a great crime.” It could be said behind every publisher lies a copyright limitation.

This week is Fair Use/Fair Dealing Week, an annual celebration of the important doctrines of fair use and fair dealing. It is designed to highlight and promote the opportunities presented by fair use and fair dealing, celebrate successful stories, and explain these doctrines.

Check out all the great posts from Day 2 of Fair Use/Fair Dealing Week 2019! Don’t see yours? Contact us to get yours added! You can view previous roundups here.

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Unless otherwise noted, posts after January 10, 2014 are written by Krista L. Cox, Director of Public Policy Initiatives at ARL. Some of the content here will not be written or created by ARL, but rather will be collected from elsewhere on the web. Quotation does NOT imply endorsement!